Citation NR: 9712113
Decision Date: 04/10/97 Archive Date: 04/18/97
DOCKET NO. 95-26 123 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
New York, New York
THE ISSUE
Entitlement to service connection for a psychiatric disorder.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
K. P. Reardon, Associate Counsel
INTRODUCTION
The veteran served on active duty from February 1955 to
August 1957. This matter comes before the Board of Veterans'
Appeals (Board) on appeal from a September 1994 rating
decision by the New York, New York RO.
REMAND
The veteran contends that the RO erred by failing to grant
service connection for a psychiatric disorder.
In reviewing the record, including an August 1995 hearing
transcript, the Board notes that the veteran has alleged that
he received treatment for a “nervous condition” during
service. The Board notes that attempts to locate the
veteran’s service medical records have been unsuccessful. A
notice from the National Personnel Records Center (NPRC)
dated in May 1993 indicates that the veteran's service
medical records were apparently destroyed in the accidental
fire at the NPRC in 1973. The Board also notes, however,
that a February 1994 response from the NPRC indicates that
morning reports have been attached. Significantly, however,
upon review of the record, none of the indicated morning
reports are present. Although the RO acknowledges missing
morning reports in a September 1994 rating decision, it does
not appear as though any additional attempt was made to
obtain the morning reports from the NPRC.
In cases where service medical records are unavailable
through no fault of the claimant, there is a heightened
obligation to explain findings and conclusions and to
carefully consider the benefit of the doubt doctrine under
38 U.S.C.A. § 5107(b). O'Hare v. Derwinski, 1 Vet.App. 365
(1991).
In addition, it is noted that in a June 1995 letter, Harold
B. Luke, M.D. reported that the veteran had been seen at the
Farmingville Mental Health Clinic from July 1975 until
September 1994. It was noted that the veteran had described
symptoms as first developing in the service. The records of
this treatment have not been obtained.
Finally, it is noted that when the veteran filed his
substantive appeal, he requested a hearing before a member of
the Board. He subsequently had a hearing before a hearing
officer at the RO,. but it is not clear that this satisfied
the veteran’s request for a hearing. This needs to be
clarified.
Under the circumstances of this case, the Board finds that
further assistance is required. Accordingly, the case is
REMANDED to the RO for the following actions:
1. The RO should contact the NPRC and
obtain copies of the morning reports from
the veteran's period of military service.
Those records should be obtained and
associated with the claims folder. If
records that are sought are not obtained,
the claims folder should contain
documentation of the attempts made to
obtain the records.
2. The RO should contact the
Farmingville Mental Health Clinic and
request copies of all medical records
concerning the veteran’s treatment from
July 1975 through September 1994. All
records obtained should be associated
with the C-File.
3. The RO should contact the appellant
and (a) request clarification concerning
his request for a hearing before the
Board and (b) advise him that he can
submit
alternate evidence to support his
contention that service connection is
warranted for a psychiatric disorder.
This evidence may take the following
forms; however, the appellant may submit
any other evidence he finds appropriate:
statements from service medical
personnel, "buddy" certificates or
affidavits, employment physical
examinations, medical evidence from
hospitals, clinics and private physicians
by which or by whom a veteran may have
been treated, especially soon after
discharge, letters written during
service, pharmacy prescription records
and insurance examinations.
4. The RO should take adjudicatory
action and provide the veteran and his
duly appointed representative a
supplemental statement of the case, if
necessary.
Thereafter, subject to current appellate procedures, the case
should be returned to the Board for further appellate
consideration, if appropriate. The veteran need take no
action until he is further informed. The purpose of this
REMAND is to obtain additional information and to ensure due
process of law. No inference should be drawn regarding the
final disposition of the claim as a result of this action.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1996) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV,
directs the ROs to provide expeditious handling of all cases
that have been remanded by the Board and the Court. See M21-
1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
C. W. SYMANSKI
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1995).
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